Sunil Dutta wants to make a point about the difficulties faced by police officers every day. But he does so by boiling down his argument to little more than, "Shut your mouth or I'll beat your ass." Dutta begins by stating the obvious:

[C]ops are not murderers. No officer goes out in the field wishing to shoot anyone, armed or unarmed.

Sure. And most people aren't saying that cops are murderers. But they are calling them out for deploying excessive or deadly force far too often. That's homicide (in the rare cases when it results in charges). Murder is premeditated and while there are likely a very small number of cops who commit murder, there is a far larger percentage deploying excessive force -- force that sometimes results in death.

Once Dutta's erected his strawman, he casts about seeking to validate the sort of force escalation that seems far too common these days. It's not cops that are bad, it's just that people won't listen.

Regardless of what happened with Mike Brown, in the overwhelming majority of cases it is not the cops, but the people they stop, who can prevent detentions from turning into tragedies.

Now that Dutta has made it clear that the public needs to exercise self-control because many police officers clearly can't, he moves on to explaining why it's so hard for officers to resist deploying excessive/deadly force.

Working the street, I can’t even count how many times I withstood curses, screaming tantrums, aggressive and menacing encroachments on my safety zone, and outright challenges to my authority.

Did someone tell you at the Academy that the public would be showering you with kisses and adoration? Perhaps they suggested you would carry all that cool hardware on your service belt because people would get in your personal space to request your autograph, you rock star you. Oh wait. You were a cop. Your job was to deal with people who were often unpleased to see you. Are you complaining? Do you want to give back your pension?

After illustrating how he resolved a potentially dangerous situation without force, Dutta moves on to explain why nearly any use of force is justified. There's only one way to (almost) guarantee that a police officer like Dutta won't move past an "ostentatious display of the lethal (and nonlethal) hardware resting in my duty belt" and into full deployment of the mini-arsenal. And that's to never do anything that might signal your respect for the police officer "interacting" with you is anything less than 100%.

[I]f you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

Dutta says "cooperate," no matter what. No matter if you're just being hassled for being in the wrong place at the wrong time or if you're the wrong color or just walking insouciantly, when a cop orders you to do something, do it. But this isn't "cooperation." That word suggests people working together. What Dutta demands is something else entirely. Scott Greenfield breaks it down:

When you use the word “cooperate,” you do so applying the cop definition. We, non-cops, are to cooperate with you, cop. We, as you’ve already told us, are to do as you say. Your idea of cooperation has nothing whatsoever to do with cooperation. It’s just a much better word than “comply or I will inflict pain, perhaps even death…"

The problem is that life isn't nearly as clear cut as Dutta portrays it. There are nuances at play at any given time, but Dutta only sees it as black and white. Submit or pay the price. That's how Dutta defines "cooperation."

The disconnect seems to be that the public just won’t do whatever a cop says. Sometimes they won’t do it fast enough. Sometimes, they don’t do it right enough. Sometimes, they won’t do it at all. Your solution is just do it or you’ve brought the wrath of the police down on your own head.

Among the many problems with Dutta's column is this: he expects the public to have respect for law enforcement while officers show an active disrespect for the laws governing their behavior. He throws this sentence into the mix without a hint of self-awareness.

Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.

This legal prohibition doesn't seem to be prohibiting the use of excessive force. And the words "stop resisting" are muttered over and over again as personal permission slips to deliver more blows, whether or not the suspect is actually resisting. Cops are given desk duty or paid suspensions for violating this law while those on the receiving end spend time in the hospital… or the morgue.

Dutta also delivers this remarkable paragraph with a straight face.

But if you believe (or know) that the cop stopping you is violating your rights or is acting like a bully, I guarantee that the situation will not become easier if you show your anger and resentment. Worse, initiating a physical confrontation is a sure recipe for getting hurt. Police are legally permitted to use deadly force when they assess a serious threat to their or someone else’s life. Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you. We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop.

Take your beating and sue later! Enjoy having your future destroyed by bullshit charges! Our justice system presumes you're innocent, except for all the evidence otherwise! Let the system runs its course, with citizens molested and cops unmolested! Use your time and money to sue us and watch the courts grant us immunity! Use YOUR OWN MONEY (taxes) to pay for our misdeeds in the odd event that a settlement is agreed to!

If this is the argument for police actions in Ferguson, it's an insanely shitty one. If this is what passes for justification, then it's clear there's no excuse for excessive force. No one truly believes all cops are murderers, but there's enough harboring the potential to do serious harm that citizens are justifiably wary that any encounter with police officers could go horribly wrong -- especially if they attempt to stand up for the rights these officers deny them.

from the easy-peasy dept

As expected, President Obama outlined basic plans for ending bulk collection of phone records. While the actual details of the plan still haven't been revealed, apparently, the administration has some "enabling legislation" ready to go, which it hopes Congress will pass "quickly." In response to this, Senator Patrick Leahy pointed out that while he's very supportive of the move to end bulk collection of phone records, there's a much easier way to accomplish that. The authority to do so technically runs out on Friday of this week, so if the President wants to end the program, he can just not seek to renew the authority:

I look forward to having meaningful consultation with the administration on these matters and reviewing its proposal to evaluate whether it sufficiently protects Americans’ privacy. In the meantime, the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path.

from the nsa-beats-terrorism-by-forbidding-unauthorized-terrorist-activity! dept

One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we've discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they've hit those walls, they've been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.

NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it's all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.

Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it's really good news.”

Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that's been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.

The interview runs just over 8 minutes, but by the end of it you'll be sick of a couple of phrases Hayden repeats ad absurdum -- "lawfully collected" and "authority."

Before getting to the X-KEYSCORE questions, Burnett runs a clip of Gen. Alexander being lobbed softballs by Sen. Mike Rogers back on June 18th. Note Alexander's verbal head fake that makes it appear he has actually answered what was asked.

Rogers: Does the NSA have the ability to listen to American's phone calls and read their emails?

Alexander: No. We do not have that authority.

That wasn't what was asked. Without a doubt, the agency does not have the authority to perform these acts. But what was asked was if the agency had the ability, whether or not it was being utilized.

When Burnett presses Hayden on this point, he provides the same dodge. She asks if the NSA has the ability to collect this kind of data and Hayden responds by saying the NSA can utilize this data, but only after it's been lawfully collected.

When she pushes further, asking what's stopping the NSA from "collecting whatever the heck you want on whoever the heck you want," Hayden goes right back to claiming NSA analysts are only authorized to query the data that's been already lawfullycollected. The question about ability continues to be danced around.

Hayden even reiterates Alexander's pseudo-answer:

"General Alexander made it clear: we don't have the authorization to do that."

Then he goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful. Hayden cannot possibly believe this statement is true. Sure, some analysts might reject legally-dubious requests from superiors but there is no way this is true across the board.

Hayden's continual reference to "lawfully collected" and "authorization" (along with the usual mentions of "oversight" and "checks and balances") is nothing short of ridiculous. It's as if he wants everyone to believe that because analysts aren't "authorized" to perform certain actions, they simply won't perform them. In Hayden's bizarrely credulous narrative, laws prevent lawbreaking.

Over and over again, he stresses the point that the data has been "lawfully collected" and that the NSA is only "authorized" to perform certain actions with the collected data. His ultra-simplistic responses are almost laughable. Of course an analyst wouldn't perform real-time data monitoring! It's not permitted!

If Hayden's narrative holds true, then we need to be asking ourselves why criminal activity of any kind occurs. After all, the laws are in place and people who know what's illegal and what isn't simply won't perform illegal activities. The alternative is to assume Hayden believes intelligence agency employees are sinless wonders above reproach, who have never abused their position or power. But nothing about the agency's past bears that out.

NSA officials have repeatedly lied to Congress. Rather than simply claim something is classified or can't be discussed publicly, they dance around straightforward questions, offering up "least untruthful" answers.

NSA analysts have abused their power. Multiple times. The agency has illegally spied on journalists, broken wiretapping laws, viewed President Clinton's emails and recorded calls from American soldiers back to America, passing around tapes of ones containing "phone sex" or "pillow talk." That's just a few instances that we KNOW about. To pretend the abuse is limited to the events revealed by whistleblowers is the height of condescension. To make the assertion that NSA analysts will only act within the limits of laws (not that much is limited) is downright insulting.

Sure, Hayden may be projecting an idealized version of the agency solely for the purpose of answering these questions, but the continual dodging of the "ability" query simply raises more questions. Nothing about this Q&A inspires trust, considering it relies on meaningless terms like "lawful," "oversight" and "collected," the latter term seemingly completely resistant to definition.

Hayden's mantra of "We don't because we're not authorized" veers into self-parody by the end of the interview, presenting the former NSA head as an automaton among men spies. The rationale doesn't pass the laugh test. Laws prevent lawlessness? Ridiculous. At best, they deter it and only then with sufficient consequences and enforcement. An agency that seemingly has answered to no one for most of its existence shouldn't be entrusted with a checking account, much less the constitutional rights of Americans.

DCMS [the UK government's Department for Culture, Media and Sport] and [crusading MP Claire] Perry have been pushing both network filtering and 'nudge censorship' onto ISPs. ISPs have agreed; now those of us who think government has got it wrong have nobody clear to pressurise.

Because there will be no legislation that specifies how all these blocks are to be imposed, or on what, the public seems to have no recourse for when things go wrong -- as is bound to happen. In particular, ORG asks the following questions about the current vague and unworkable plans:

1. Are ISPs responsible for incorrect blocks?

2. Are ISPs financially liable for incorrect blocks?

3. What happens when government suggests that 'terrorist content' be blocked with not 'opt out'?

4. Are ISPs responsible for adopting the nonsense 'preselected censorship' policy -- as it is not official government policy, but apparently the personal position of Claire Perry and DCMS heads such as Maria Miller?

5. Will Claire Perry continue to have a personal veto on the nature of broadband set up screens?

The debate will doubtless continue, but ORG's analysis does highlight one thing: the danger of moving to "voluntary" schemes for tackling difficult problems in the online world, rather than crafting new legislation, since they offer little in the way of formal debate or checks and balances.

from the going-to-be-a-mess dept

Earlier today, we broke the story that the head of the US Copyright Office, Maria Pallante is proposing major copyright reforms, including reducing the term to life plus 50 with the ability to proactively renew for another 20 years. While this was a move in the right direction (though not far enough), there were plenty of other proposals that were worrisome. Some more details are starting to come out.

First, I'm at a Santa Clara University conference all about the DMCA (fun stuff!) today, and Rob Kasunic from the Copyright Office mentioned that Pallante's talk at Columbia a couple weeks ago, where most of this information comes from, was merely a "shorter" version of her larger proposal. And that's impressive since her talk covered a lot of different areas concerning copyright. Now, the Association of Research Libraries has posted the notes of an attendees at that lecture, Greg Cram, from the NY Public Library. He points out that these are just his own notes, and may not be totally accurate. However, there are some details. First, the reduction in copyright term is basically what we discussed:

Term of 50 years, renewable for an additional 20

—The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

—However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

—This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

—Modeled after § 108(h), something the Copyright Office is very fond of

—This proposal would be acceptable under various international treaties, including the Berne Convention

This is a small step in the right direction, which is surprising, since pretty much all steps have gone in the other direction, in favor of maximalism. However, there is plenty to be worried about. Here are a few such points:

Stronger Enforcement —The new law must respect the integrity of the internet, including free speech —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

In other words... perhaps we trade off shorter terms for more criminal prosecutions for "streaming," even as there are serious questions about why basic streaming should be illegal and with so much evidence that greater enforcement does little to help copyright holders' bottom line. That's a problem.

The Digital Millennium Copyright Act —The Internet has evolved since DMCA passage in 1998 —Congress should review the § 512 safe harbors —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

This is the part that worries me. The entertainment industry has been really itching to ditch the DMCA's safe harbor provisions that protect service providers from liability for the actions of their users. If that's the trade-off for shorter copyright terms, it's not worth it. The safe harbor provisions of the DMCA are a huge part of why the internet has been able to develop so many wonderful services.

The § 1201 rulemaking, however, is the issue concerning anti-circumvention, which should absolutely be re-examined, as it's created a huge mess for all sorts of legitimate uses. But, again, re-opening the safe harbors provision should be a non-starter. Nothing good can come from that.

Incidental Copies —Not all copies are the same —Perhaps there could be discrete exceptions for certain incidental copies —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

Depending on where this falls out, this could be pretty important. Hollywood has often tried to argue that "incidental" copies should be seen as infringing, and cases like the Cablevision case have raised some issues around that.

Public Performance Right for Sound Recordings —Copyright Office is a “strong supporter” of a public performance right for sound recordings —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

This is an old battle that's been fought for years and years, and is basically a tax on broadcasters for the benefit of the RIAA. It's silly since it's obvious that the record labels directly value radio airplay, because they pay for it via payola. Arguing that radio stations should have to pay back for the "right" to promote a musician seems kind of silly.

Statutory Damages —Review registration requirements —Look at statutory damages from all angles —Statutory damages are important part of copyright act and should be retained —Need to provide guidance to courts about how statutory damages should be applied

This one could be good, since the statutory damages are so out of whack with reality. However, again, just watch as Hollywood -- with its ridiculous belief that "more punishment" will suddenly get people to buy again -- argues that these rates need to go up not down.

Other Exceptions/Limitations —The libraries and archives exception in Â§ 108 should be updated —Update exceptions for the blind and print disabled in § 121 for the digital world —Explore new exception for higher education institutions —Personal space-shifting

These are important, but are really reflections of problems of a system that has automatic copyright applied to nearly everything and not nearly enough recognition of individual rights. The solutions here are useful, but are basically just patching up evidence of why overreaching copyright law is fundamentally broken. On that issue, however, she apparently believes that more compulsory licensing can be a solution:

Of course, this ignores just how screwed up the collective licensing process often becomes, with the focus just being on constantly raising rates, often squeezing out other business models. On top of that, the distribution challenge means a lot of wasted overhead and an all too frequent situation in which big name artists end up getting the money that should go to smaller artists, since they're harder to find and to track.

Small Claims —The Copyright Office is studying this issue —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive —The Copyright Office could, potentially, take a lead role in administering small claims

We discussed this recently, and how it could actually have widespread impact, leading to more infringement lawsuits being filed. This needs to be watched carefully.

There's also the issue of giving herself a lot more power:

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

Basically, they want to make the Copyright Office a bigger deal, like the FCC or something. This has a whole host of risks, especially when the Copyright Office has a big revolving door with the entertainment industry.

Once again, this is going to be a very big deal when the full details of these suggestions are put forth -- and we should be quite worried about a number of the ideas above that could make things significantly worse, rather than better.

from the which-is-it? dept

Back in March, when the US State Department responded to Ron Wyden's questions about the feds' authority to negotiate and sign onto ACTA without Congressional approval (damn you, Constitution), it made an odd (and rather new) claim: that Congress had actually already approved the executive branch's ability to negotiate and approve international agreements on intellectual property issues. The claim was that the ProIP Act (of 2008) said the newly appointed IP Czar should create a joint strategic plan which, among other things, helps identify how the administration can deal with IP enforcement issues by "working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights."

Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.

Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.

I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.

While the ruling against Comcast was rather pointless and meaningless, this appeal could create a much more interesting lawsuit, helping to more clearly define the FCC's authority on these issues. Amusingly, despite the effective issues being identical to the question of the FCC's authority over consumer electronics in the broadcast flag debate from four years ago, expect various public interest groups to align on the opposite sides of where they did back during that fight. Apparently, FCC regulation is bad, except when it's in agreement with your opinion.

from the double-standards dept

With most reports assuming that the FCC will vote in favor of some sort of wrist slap on Comcast for its traffic shaping this week, one of the things that doesn't make sense is the folks who are cheering about this move who also fought like dogs to keep the FCC from implementing the broadcast flag. As you may recall, a few years back, the entertainment industry pushed for the FCC to mandate a broadcast flag that would allow it to define rules for whether or not its content could be recorded by DVRs. The courts rightfully determined that such a mandate was outside the scope of the FCC's authority. However, an FCC ruling on net neutrality is basically covering identical grounds, yet many of the groups cheering this decision are the same who fought against the Broadcast Flag, claiming the FCC had no mandate.

Now, to be clear, the concept of network neutrality is definitely a good thing -- but having the FCC suddenly put itself in charge of regulating such things (even if it's regulating it in a reasonable manner) is really dangerous. Those who are celebrating this decision should be worried about what it means. Specifically, they're going to have little leg to stand on when the FCC next tries to mandate something outside of its authority (which is almost certainly going to happen in the near future).

That doesn't mean that the apocalyptic predictions from the industry will come true, however. Represented by a positively ridiculous and blatantly silly editorial in the Washington Post by FCC commissioner Robert McDowell, it's pure rubbish to suggest that this ruling by the FCC means the internet might "grind to a halt" is totally unsubstantiated sensationalism that has been shown time and time and time again to be false. There isn't a serious bandwidth crunch -- and whatever potential crunch may be coming could be dealt with by some modest improvements in infrastructure, not necessarily by breaking network neutrality, which is more of an attempt to double charge for bandwidth than anything else.

However, supporters of net neutrality may be making a big mistake in cheering on the FCC as it expands its authority in this area. The FCC has never been about protecting consumer rights, and granting them this authority (which the law appears not to do) opens the door to a lot more trouble down the road.

from the loses-some-of-the-appeal dept

Wikipedia has apparently been testing a system by which new edits from most users don't show up for most visitors until they get approved by someone with "authority." The plan sounds similar to one that was suggested a year ago -- but in that case, the new edits would simply be shaded in a different color to warn people that they hadn't been reviewed. That seems much more effective than completely waiting to approve any edit -- especially since the "approvals" are really just to weed out vandalism, not to review the actual trustworthiness of the content. But with color coded "unreviewed" content, it will remind users to make sure they're even more cautious than they should be with regular Wikipedia content. Either way, requiring approval before edits go live seems like it would take away much of the spirit that made Wikipedia what it is today.

from the a-little-of-this-and-a-little-of-that dept

As was widely expected, FCC boss Kevin Martin has come out saying he believes Comcast violated FCC rules in its traffic shaping program, and he's recommending that the FCC sanction, but not fine, Comcast and order it to stop its traffic shaping (something it's already planning to do). Kevin Martin's favoritism towards the telcos is well known -- so it comes as no surprise that he'd come out against Comcast. He's given every indication that such a move was in the cards. However, the lack of a fine -- combined with telling Comcast to do what it was already doing -- is an interesting move. If anything, it may be an attempt by Martin to quietly assert control over cable and hope that the cable industry doesn't fight back.

Whether or not the FCC's mandate really does include cable is an open question -- and the cable companies have at least a decent claim to the fact that their systems are not covered by the FCC. So, here's a situation where the FCC is slapping Comcast's wrist in such a way that Comcast is unlikely to mind -- but if it "agrees" to the response, then it may be effectively admitting that the FCC does have a say in how cable companies operate, which could open quite a Pandora's box in terms of the FCC's overall mandate.

There is, of course, a simpler way out of this that no one appears to be taking. The real problem most people had with Comcast's actions was that it wasn't at all transparent about them -- continually insisting that they weren't doing anything. Effectively, Comcast may have been guilty of false advertising in terms of how its network worked. So why not have the FTC, rather than the FCC, slap them down for their lack of transparency, rather than having the FCC step in where it might not belong?

As for those who are claiming that Martin's statements are somehow a "victory" for network neutrality, you might want to think again. Martin has made it clear in the past that he's not a supporter of network neutrality -- especially when it comes to the telcos, telling AT&T that if it felt it needed to start discriminating traffic for a valid business reason, it should feel free to do so.